Board recommends Vineyard prosecutor be suspended

Thursday

May 17, 2018 at 8:40 PMMay 18, 2018 at 5:01 PM

Penalty stronger than that previously recommended for Laura Marshard.

Ethan Genter @EthanGenterCCT

BOSTON — The state Board of Bar Overseers has recommended that Cape and Islands Assistant District Attorney Laura Marshard be suspended for one month for abusing her prosecutorial power by meeting with a witness without the consent of his attorney.

That is a more severe discipline than the public reprimand recommended by the board's Hearing Committee in October, and the full board used stronger language in describing Marshard's conduct and what it called "troubling" behavior by the district attorney's office.

The recommendation, which came in a memorandum submitted by the board Monday, will be reviewed by the state Supreme Judicial Court. The high court established the board in 1974 to investigate complaints against attorneys.

Marshard's reinstatement should be contingent on her completing a legal ethics class approved by the Office of the Bar Counsel, the board recommended. Her attorney, Elizabeth Mulvey, issued a statement Thursday night that said Marshard "respects and accepts the Board’s decision."

The Office of the Bar Counsel, which brings charges before the board, had filed a petition for discipline against Marshard, a longtime prosecutor on Martha's Vineyard, in September 2016, accusing her of three counts of misconduct in separate cases. After presiding over eight days of testimony in May and June 2017, the Hearing Committee determined only one count crossed the line into misconduct, although it found her behavior in other instances "problematic."

The full board agreed, and focused its decision on that one charge, which stemmed from a 2014 case Marshard handled in Edgartown District Court related to a brawl on the island.

In July of that year, Dave Sylvia was involved in a fight that resulted in charges against Patrice Petersen. Marshard, along with an Edgartown police detective, met with Sylvia about two weeks afterward to obtain a statement and gauge his willingness to be a witness for the prosecution.

Sylvia, who was at first worried about retaliation, agreed to cooperate and provided a written statement.

At a court hearing more than a month later, attorney Timothy Moriarty was appointed to represent Sylvia to ensure he understood his rights against self-incrimination. Marshard, who was at the hearing, asked a police officer to find Sylvia, who was not in the courtroom when counsel was appointed, and bring him to the law library.

Marshard passed Moriarty in the hallway, and testified at her disciplinary hearing that she might have told him she was going to speak with Sylvia. Moriarty did not respond or follow her into the meeting.

Marshard, who had prosecuted Sylvia several times before, met with him, discussed the case, and explicitly told him he would not be charged with a crime in an effort to persuade him to testify, the board's decision says.

A judge later asked Marshard if Sylvia’s attorney was at the meeting, and Marshard denied that an attorney had been appointed at the time.

“Obviously, (Marshard) knew that Moriarty represented Sylvia, since she was in court when Moriarty was appointed,” the board's decision states.

The Fifth Amendment discussion between Marshard and Sylvia was “a conversation that should have occurred with his lawyer, not the prosecutor," the decision says.

The board also was concerned that Marshard misled the judge when she failed to inform him that she had offered not to prosecute Sylvia if he testified. Marshard then gave false testimony to the Hearing Committee that she eventually told the judge she had assured Sylvia he was not in trouble, of which there is no evidence in the court transcripts, the decision states.

"These were lies," the board wrote.

In recommending a stronger penalty, the board noted Marshard's experience as a prosecutor, the lack of understanding she displayed during her testimony of her ethical obligations and her lack of candor before the Hearing Committee, including "outright falsehoods."

A Supreme Judicial Court justice will determine whether to accept the Hearing Committee's or full board's recommended penalty or impose something different, said Constance Vecchione of the Office of the Bar Counsel. Marshard also may argue for a different sanction, she said.

“All possibilities are open when it gets before a judge,” Vecchione said. No date has been set yet for a hearing.

In her statement, defense attorney Mulvey wrote that Marshard "respects the decision of the Board of Bar Overseers, which apparently felt that she should have insured the presence of a victim’s counsel at a brief meeting with the victim-witness. At the time, ADA Marshard believed that since the victim’s experienced court-appointed counsel was aware of the meeting and did not voice any objection, either before or after the meeting, she had his consent. The hearing committee and the Board of Bar Overseers found that affirmative consent was required, and ADA Marshard hopes that this ruling will help clarify prosecutors’ obligations in the future. Her actions arose out of her desire to respect and protect the victim’s rights, which is both the consistent policy of the Cape and Islands District Attorney’s Office and a statutory obligation of prosecutors."

The district attorney’s office did not respond to a request for comment on Marshard’s case or on the board's observation about its practices.

“... while this had no bearing on the outcome of the case, the hearing committee noted that ex parte meetings with represented persons are apparently a regular occurrence in the district attorney’s office where (Marshard) works,” the decision says.

The board called the finding “troubling,” saying that “as shown in this case, the government can bring huge resources to bear on a witness. Even if unintentional, the presence of uniformed officers can be intimidating. The threat of prosecution is real. The consequences can be severe.”

— Follow Ethan Genter on Twitter: @EthanGenterCCT.

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